CAP (a child) v Jeffers
[2010] WASC 235
•31 AUGUST 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CAP (a child) -v- JEFFERS [2010] WASC 235
CORAM: BLAXELL J
HEARD: 13 MAY 2010
DELIVERED : 31 AUGUST 2010
FILE NO/S: SJA 1141 of 2009
BETWEEN: CAP (a child)
Appellant
AND
RICHARD MICHAEL JEFFERS
STEPHEN JOHN FLANAGAN
Respondents
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P HOGAN
File No :AL 369 of 2009, AL 370 of 2009, AL 371 of 2009, AL 372 of 2009, AL 373 of 2009, AL 374 of 2009, PE 2065 of 2009, PE 5466 of 2009, PE 5467 of 2009, PE 5468 of 2009, PE 5469 of 2009
Catchwords:
Criminal law - Appeal - Sentence - Young offender - 14-year-old boy with no previous record - six aggravated burglaries, one aggravated armed robbery, three attempted aggravated armed robberies and one stealing of motor vehicle - Sentences totalling 12 months' detention - Whether sentences manifestly excessive
Legislation:
Young Offenders Act 1994 (WA), s 6, s 7, s 8, s 46, s 118, s 120
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M R Jones
Respondents : Mr J Newton-Palmer
Solicitors:
Appellant: Ian Hope
Respondents : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996)
B (a child) (1995) 82 A Crim R 234
Chan (1989) 39 A Crim R 337
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499, 505
JA (a child) v The State of Western Australia [2008] WASCA 70
Lowndes v The Queen (1999) 195 CLR 665
BLAXELL J: On 12 November 2009 the appellant appeared in the Perth Children's Court and was sentenced to a total of 12 months' detention for ten offences including a number of aggravated burglaries and an aggravated armed robbery. The appellant committed the first of those offences in March 2009 when he was 13 years old, and the remaining offences in September 2009 when he was 14 years old. He had no previous record of offending.
The appellant appeals from the sentences on the basis that they were manifestly excessive. In this regard, his essential contention is that the sentencing magistrate placed too much weight on the need for general deterrence, and not enough weight on the prospects for his reformation and rehabilitation.
It is an unfortunate fact that by the time the present appeal was heard, the appellant had already served the 6‑ month custodial component of his sentence and been released under a supervised release order. Accordingly, the outcome of this appeal is completely academic from his point of view. The potential for injustice that arises from these circumstances could have been easily avoided if the appellant's solicitor had given early consideration to any of the following steps:
•An application to the President of the Children's Court for a rehearing of the matter under s 28 of the Children's Court of Western Australia Act 1988 (WA).
•An application for bail pending the determination of the appeal.
•An application to expedite the hearing of the appeal (which would have been readily granted).
The facts of the offences
The appellant's first offence was an aggravated burglary of a house in North Perth. It occurred during the early hours of 27 March 2009 while a family was asleep inside. The appellant acted as a lookout and waited outside while two older co‑offenders broke in and stole a large quantity of electrical goods to a total value of $6,150. The stolen property was loaded into a motor vehicle and the three offenders then drove away.
The appellant was arrested on the following day and appeared in the Perth Children's Court on 1 April 2009 when he pleaded guilty to the offence. He was referred to a juvenile justice team and then released to bail.
While the appellant was still on bail on 2 September 2009 there were three separate incidents when he and two co‑offenders (aged 13 years and 17 years) committed an aggravated armed robbery followed by four attempted aggravated armed robberies.
The first of these offences occurred in Fremantle Road, Gosnells at 8.15 am, and the victim was a young male riding his pushbike. One of the co‑offenders stopped the bike and demanded that the victim hand over his money and mobile phone. When the victim refused to do this the co‑offender lifted his shirt to reveal a machete tucked down his pants. The appellant and the other co‑offender then surrounded the victim while the machete was held up towards his throat. After the victim handed over his mobile phone he was allowed to leave on his bike.
The appellant and his co‑offenders then walked to Gosnells train station where they caught a train to Maddington. After leaving the Maddington train station they approached and surrounded a male pedestrian who was carrying an IPod. They demanded that the second victim hand over the IPod but he refused. The appellant then lifted his shirt to reveal the machete which by that time was tucked down his pants. However, the robbery was abandoned when he and his co‑offenders were disturbed by passing traffic.
At 10.00 am on the same day the appellant and his co‑offenders approached two juvenile females walking along a street in Cannington. The appellant demanded that the girls hand over their mobile phones, but they refused and one of them used her phone to start calling the police. The appellant then withdrew the machete from his pants and swung it in close proximity to both girls. This caused the victims to walk away, and the three offenders followed them for a short distance. However, they ran off when they realised that one of the victims was calling the police.
The appellant was arrested the same day, made full admissions, and was once again released to bail. He was still on bail on 19 September 2009 when he travelled to Albany with members of his family to attend his aunt's funeral. On the morning after the funeral (20 September 2009) the appellant and his 14‑year‑old cousin committed a series of five burglaries in three houses at Albany. (They were charged with five offences because they re‑entered two of the houses to steal further goods).
The first house broken into was temporarily unoccupied, and entry was gained by smashing a rear glass sliding door. The appellant and his co‑offender went in and out of the house twice to steal alcohol and jewellery to a total value of $3,800. Less than an hour later they broke into the second house by shattering a glass panel on a rear door. The appellant and co‑offender entered and re‑entered the house, and stole various items including a rifle and family heirloom jewellery to a total value of $7,200. (One of these items, being an heirloom valued at $5,600 was never recovered). The appellant and his co‑offender also attempted to steal a vehicle parked in the carport of the second house but were unsuccessful because it repeatedly stalled.
Not long afterwards, the appellant and his co‑offender entered the third house through an unlocked front door. Once inside they were confronted by a partially disabled 96‑year‑old woman who lived in the house on her own. The appellant asked if he could use the toilet and also have a drink of water. The victim then took the appellant to the kitchen of the house, and while he was distracting her, his co‑offender entered a bedroom and stole the woman's handbag containing $250 in cash.
The appellant was arrested by police within minutes of leaving the third house. He was interviewed at the police station and made full admissions. He remained in custody until he was sentenced by the Perth Children's Court on 12 November 2009.
Other matters relevant to sentence
The reports before the magistrate showed that the appellant was born on 26 April 1995 of indigenous parents and that he experienced a dysfunctional childhood. In this regard, his mother was an alcoholic, and his father did not play any significant part in his upbringing. At the time of sentence the appellant's father was serving time in prison.
Because of the mother's alcohol problems, the appellant had resided with an uncle from about 2007. However, after committing the first offence in March 2009 he had moved in with his paternal grandmother (who had taken on a parental role).
Although the appellant had changed schools because of disruptive behaviour he had reached Year 9 and was performing at an academically average level. He was a good Australian Rules footballer and had played regularly with a suburban team. However, he had experimented with alcohol and cannabis from early 2009, and had consumed valium tablets on the night before committing the Albany offences. The appellant was willing to engage in substance abuse counselling.
Following the appellant's first appearance in court on 1 April 2009 he and his mother had attended a meeting arranged by the juvenile justice team. Those attending the meeting had included an Aboriginal coordinator, a police representative, and the victim of the first offence. At that meeting the appellant had listened with empathy to the victim and had made an apology. Those present had also negotiated an 'action plan' under which the appellant would receive appropriate counselling and support. However, there were subsequent difficulties in contacting the appellant and his mother, and the action plan was never implemented. For this reason the matter had been returned to the Children's Court on 21 July 2009.
After the appellant was arrested again in September 2009, he and some members of his family re‑engaged with Community Justice Services. Consequently, by the time of sentence on 12 November 2009 Community Justice Services was in the position to implement a 'youth support strategy' in the event that the appellant was not sentenced to detention. Under this strategy it was proposed that that the appellant would temporarily reside with his maternal grandfather who lived at a remote location approximately 400 kilometres from the nearest town. While there, the appellant would 're‑engage with his cultural heritage and live off the land'. He would then return to live with his paternal grandmother at the commencement of the new school year in 2010. It was also proposed that the appellant would be subject to supervision and programme requirements under an appropriate order.
The court report which proposed this strategy provided the following assessment of the appellant:
[CAP] presented as a polite, friendly and motivated young person who appeared to understand the seriousness of his situation. [CAP] impressed as sincere in his conviction when describing his feelings of regret and explained that he would have been 'scared' if he were in the victim's position. It is positive to note that [CAP] appeared to have the ability to empathise with the victims of his offences and was able to explain his feelings regarding his actions.
It would appear as though [CAP] has not had a consistent male role model in his life due to the fact that his father is currently serving a custodial sentence. [His grandmother] advised that no other family members present as positive role models. [His grandmother] also advised that [CAP]'s mother has not played a significant parental role in [CAP]'s life due to her alleged alcohol issues. It is thought that these factors may have contributed to [CAP]'s lack of guidance and parental control. [His grandmother] informed that she has now taken on the parental responsibility of [CAP] as she does not trust [his mother] to provide adequate care for him. [His grandmother] appears to be a positive influence in [CAP]'s life and she speaks very fondly of him.
It is believed that [CAP]'s offending behaviour is significantly linked to negative peer influence. [CAP] advised that he no longer has contact with his co-offenders and informed that he realises that he was negatively influenced by his peers. [CAP] believes that he has learnt significant lessons in relation to negative peer influences, drug use and offending behaviour through this experience.
[CAP] appears to have a positive attitude in relation to refraining from further involvement in the criminal justice system. This can be observed through his willingness to temporarily reside with his grandfather, obtain employment, engage in a holiday and program. It is positive to note that during the interview [CAP] suggested several options to keep himself out of trouble which possibly indicates the level of sincerity [CAP] has to refrain from further offending.
The magistrate's sentencing remarks
In arriving at the total sentence of 12 months' immediate detention the magistrate expressly acknowledged all relevant mitigating and aggravating factors. In respect of mitigating factors his Honour noted that the appellant came before the court as a first offender, that he was 14 years old, that he had pleaded guilty to all offences and had made full admissions to the police. His Honour also noted that the appellant's father was in prison, that his mother 'can't help you much', and that 'certainly your background and upbringing isn't your fault'.
It was an aggravating factor that the more serious offences were committed while the appellant was on bail, and that 'random victims' had been approached with threats of violence to hand over their property. His Honour also noted that the offences had 'left real victims' whom presumably had been seriously affected by what had occurred.
His Honour referred to the relevant provisions of the Young Offenders Act 1994 (WA) including s 120 'which means there can't be a sentence of detention unless there is no other way to deal with the case'. In that regard, and although the appellant had never been on a court order before, his Honour considered the case was one in which 'general deterrence looms large'.
After taking all of the relevant factors into account his Honour came to the view that the seriousness of the offences meant that there was no alternative other than sentences of immediate detention.
The appellant was sentenced to 12 months' detention (backdated to 21 September 2009) for the offence of aggravated armed robbery. For each of the remaining offences there were sentences of either 6 months' or 3 months' detention, all of which were made concurrent with the first sentence.
The ground of appeal
On 8 February 2010 McKechnie J granted the appellant leave to appeal on the following ground:
The learned sentencing Magistrate erred in law, or alternatively in the exercise of his discretion, by imposing a sentence that was manifestly excessive when proper regard is had to all the circumstances of the offences and to all the circumstances of the appellant.
PARTICULARS
(a)The learned sentencing Magistrate erred by failing to give proper weight to the objectives set out in section 6 of the Young Offenders Act 1994.
(b)The learned sentencing Magistrate erred in failing to give proper weight to defence counsel's submissions concerning proposed arrangements concerning the appellant's rehabilitation.
(c)The learned sentencing Magistrate erred by finding the need for a sentence of general deterrence to be the dominant consideration.
(d)The learned sentencing Magistrate erred by failing to give proper weight to the appellant's reformation and rehabilitation.
The sentencing of young offenders
The principles that govern the sentencing of young offenders are very different to those which apply to adults. Adult offenders are sentenced in accordance with the Sentencing Act 1995 (WA), whereas a young offender who has not reached the age of 18 years must be dealt with in accordance with the Young Offenders Act 1994 (WA) (the Act). The main objectives of the Act are specified in s 6 and include the following:
(d)to enhance and reinforce the roles of responsible adults, families, and communities in -
(i)minimising the incidence of juvenile crime;
(ii)punishing and managing young persons who have committed offences; and
(iii)rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens;
(e)to integrate young persons who have committed offences into the community; and
(f)to ensure that young persons are dealt with in a manner that is culturally appropriate and which recognises and enhances their cultural identity.
To this end, s 7 specifies 'general principles of juvenile justice' which a court must apply when sentencing a young person. These principles include the following:
(b)a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct;
(c)a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult;
(d)the community must be protected from illegal behaviour;
(e)victims of offences committed by young persons should be given the opportunity to participate in the process of dealing with the offenders to the extent that the law provides for them to do so;
(f)responsible adults should be encouraged to fulfil their responsibility for the care and supervision of young persons, and supported in their efforts to do so;
(g)consideration should be given, when dealing with a young person for an offence, to the possibility of taking measures other than judicial proceedings for the offence if the circumstances of the case and the background of the alleged offender make it appropriate to dispose of the matter in that way and it would not jeopardise the protection of the community to do so;
(h)detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary;
…
(j)punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
(k)a young person who is dealt with for an offence should be dealt with in a time frame that is appropriate to the young person’s sense of time;
(l)in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered; and
(m)a young person who commits an offence is to be dealt with in a way that —
(i)strengthens the family and family group of the young person;
(ii)fosters the ability of families and family groups to develop their own means of dealing with offending by their young persons; and
(iii)recognises the right of the young person to belong to a family.
Section 8 of the Act further emphasises the role of responsible adults in the disposition of cases involving offences committed by young persons under their care. Amongst other things, s 8 requires that the court have regard to the principle that responsible adults should be involved in the punishment or management of such young offenders.
The key provision of the Act is s 46 which provides as follows:
(1)When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply -
(a)the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b)the general principles of juvenile justice.
(2)The court is to consider any information about the offender or the offence that may assist the court to decide how to dispose of the matter, and in particular -
(a)the nature and seriousness of the offence;
(b)any history of offences previously committed by the offender;
(c)the cultural background of the offender;
(d)any order previously made by a court when disposing of a charge of an offence that still applies to the offender, and any further order that is liable to be imposed if the offender does not comply with the terms of any such order; and
(e)the extent, if any, to which any person was affected as a victim of the offence.
(3)The court is to dispose of the matter in a way that is in proportion to the seriousness of the offence and is consistent with the treatment of other young persons who commit offences.
(4)In deciding how to dispose of the matter, which includes deciding the appropriate degree of severity to be used, the court is to consider how young the offender is as a mitigating factor.
(5)The court is to have regard to the fact that the rehabilitation of an offender is facilitated by -
(a)the participation of the offender’s family; and
(b)giving the offender opportunities to engage in educational programmes and in employment,
but the absence of such participation or opportunities is not to result in the offender being dealt with more severely for the offence.
(5a)Subject to section 106 of the Road Traffic Act 1974 but despite any other enactment, where a written law provides that a mandatory penalty or that a minimum penalty shall be imposed in relation to an offence, the court dealing with a young person for the offence is not obliged to impose such a penalty.
(6)The operation of this section is affected by section 125.
Further key provisions of the Act are s 124 and s 125 which limit the circumstances in which the court is to 'give primary consideration to the protection of the community ahead of all the other principles and matters referred to in s 46'. This should only happen when the young offender has previously served a custodial sentence and the court is satisfied that:
… there is a high probability that the offender would commit further offences of a kind for which custodial sentences could be imposed.
Section 120 further provides that:
(1)The court cannot impose any custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter.
The clear underlying intent of all of these provisions is that a court sentencing a young offender (and in particular a first offender) should lean towards a disposition which encourages the rehabilitation of that young person. This intent is consistent with the fundamental objective of the criminal justice system which is to protect the public by reducing the incidence of crime. As was stated by the Court of Criminal Appeal in B (a child) (1995) 82 A Crim R 234, 244:
The relevance and importance of rehabilitation as one of the criteria can easily be misunderstood. It is fallacious to regard the rehabilitation of an individual offender as a consideration separate and apart from, and somehow inimical to, the protection of the public. The two things are intrinsically connected. The criminal justice system aims to rehabilitate offenders (particularly young offenders) because rehabilitation removes the danger to the public from one of its (previously) errant members.
This does not mean that a court sentencing a young offender is to ignore the need for personal and general deterrence. In this regard, s 46(1)(a) requires that the court have regard to general sentencing principles (ie, those that apply to adults) to the extent that they are not modified by the Act. In AM (a child) v The Queen (Unreported, WASCA, Library No 960263, 15 May 1996), the Court of Criminal Appeal held that when applying the provisions of the Act:
General deterrence as well as particular deterrence must not be lost sight of, but it is particularly the case for young offenders that their rehabilitation is regarded as offering the best guarantee against their continuing offending, and therefore for the protection of the community from their lawless behaviour, where that is seen as a real possibility. (emphasis added)
More recently, in JA (a child) v The State of Western Australia [2008] WASCA 70 the Court of Appeal has held that general and personal deterrence have a 'tempered role' to play in the sentencing of young persons under the Act. Wheeler JA (with whom Miller JA agreed) held:
Thus, where rehabilitation seems unlikely, or where the offending or course of offending is serious, or the character and antecedents of the offender justify it, deterrence becomes a significant consideration once more: R v DP (A Child) [2003] WASCA 92 [57]; Ainsworth v D (A Child) (1992) 7 WAR 102, 117; MC (A Child) v The Queen [2003] WASCA 205 [20], [31].
The merits of the appeal
The appeal is from the exercise of a judicial discretion and the principles that apply in these circumstances are well established. This court cannot substitute its own opinion for that of the sentencing magistrate merely because it would have exercised its discretion in a different way (Lowndes v The Queen (1999) 195 CLR 665, 672). The appeal can only succeed if it is shown that the sentencing court acted upon a wrong principle, took into account extraneous or irrelevant matters, made a mistake of fact, or failed to take account of some material consideration (House v The King (1936) 55 CLR 499, 505).
It is when the appellant cannot point to any particular such error that the alleged excessiveness of the sentence becomes important. If the sentence is manifestly excessive, or 'unreasonable or plainly unjust', the appellate court can infer that the sentencing discretion miscarried in some unknown way (House (505), Dinsdale v The Queen (2000) 202 CLR 321, 325). The determination whether a sentence is excessive requires a consideration of the maximum sentence prescribed, the standards of sentencing customarily reserved for that offence, the place which the offending conduct occupies on the scale of seriousness for offences of that type, and the personal circumstances of the offender (Chan (1989) 39 A Crim R 337, 342). In the case of a sentence imposed upon an underage young offender, it also requires a careful consideration of the provisions of the Act.
The present case is a prime example of the very difficult sentencing exercises that the Children's Court must often undertake. At the time of sentence the appellant was only 14 years 4 months old, and he was a first offender. He had committed very serious offences which would ordinarily call for significant terms of detention. However, there were factors in his background which helped explain why he had offended, and the report before the court showed that he had the capacity and was also motivated to turn his life around. Furthermore, the appellant was susceptible to being negatively influenced by his peers, and if sentenced to detention his time in custody would be spent with older and more experienced offenders. In these circumstances, there was a strong chance that the appellant would continue to take the wrong path, and that the prospects for his rehabilitation would be lost.
Because of s 125 of the Act the protection of the community was not the primary consideration in sentence. Nevertheless, in all of the circumstances, it was open to the magistrate to come to the view that the protection of the community from any future offending by the appellant would best be achieved if he was not subjected to the negative influences of detention. Furthermore, the strategy proposed by Community Justice Services offered the prospect that the appellant could for the first time live in a positive (extended) family environment.
As against this, general and personal deterrence were also relevant factors for the magistrate to take into account. The attempted armed robbery during which the appellant waved the machete towards the two young girls was particularly serious. The aggravated burglary of the 96‑year‑old woman's home in Albany was also very serious, albeit it did not involve any act of violence and that her handbag was stolen by deceit. The fundamental question to be determined on appeal is whether it was open to the magistrate to conclude that the offences were so serious that they required sentences of immediate detention.
Having considered this question very carefully, I consider that it was open to the magistrate to come to this conclusion. It also would have been open to his Honour to determine that a more appropriate disposition was for the appellant to be released into the community on supervisory and programme conditions as recommended by Community Justice Services. However, in my view, the disposition that the magistrate in fact arrived at did not fall outside the range of a sound sentencing discretion.
Conclusion
For these reasons, the appeal will be dismissed.
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